Explained: Divorce by mutual consent

Reading time: 6-7 minutes.

Marriage is considered as the union of two souls, a commitment to each other between two persons in an attempt to gain happiness and fulfil societal obligation through performing various rites and ceremonies. It is also considered as a sacrament or a civil contract between two parties. Different views are there of people on marriage, but the sole and common view is that it is a way to perform certain duties obligations.

In ancient times, marriage was considered as a permanent union of two persons and the bond which cannot be broken. Radhakrishnan commented that the marriage relationship is an indissoluble one. So, as long as we take this view it is good but if we take another view of life and see it as a way of fulfilling our desires it cannot be seen as permanent.

In recent times the situation has changed completely. Married couples could not withstand each other due to many reasons like contradictions between their ideas, way of living and many more things. To end the responsibilities, obligations, and duties, end the legal relationship divorce came to be seen as the best way to get rid of these things and terminate the marital union.

Often it is used as a way to end the relationship forcefully without the consent of another party especially women, so another dimension of divorce came into being i.e. divorce by mutual consent by parties. Since independence, it is seen that there is upliftment in the condition of women. The materialistic era has brought several changes that have changed the view of people on this issue.

Various steps are taken to ensure the better condition of women and to change the status of women in society. Divorce by mutual consent was seen as the best way to settle the dispute between the parties arising out of clashes of interest arising between them and step towards the upliftment of condition of women.  As said by Bertrand Russell, “perhaps easy divorce causes little unhappiness than any other system”.

It is seen as a way to restructure and reorganize the family and individual. Ahrons and Rodgers pointed out “While marriages may be discontinued, families-especially those in which there are children -continue after marital disruption…They do so with the focus on the two ex-spouse parents now located in separate households-two nuclei to which children and parents alike, as well as others, must relate.” So, it can be inferred that it divorce does not mean the end of everything. Divorce by mutual consent is a completely different aspect and is a very good step towards changing the family law system in India.

Ways of filing of divorce by mutual consent under religious laws.

A different group of people is governed by different laws and their procedure is also diverse. The Indian court system is governed by various acts related to divorce.

Law Hindu Law Muslim Law Christian Law Parsi Law Special Marriage Act
Under Section 13-B of the Hindu Marriage Act, 1955. Under Shariat Law (Mubarak) and Dissolution of Muslim Marriage Act, 1939 Under Section 10-A of the Divorce Act, 1869. Under Section 32-B of the Parsi Marriage and Divorce Act, 1936. Under Section 28 of the Special Marriage Act, 1954.
Court Petition to the District Court together. Notice to the Chairman in writing by the Couple. Petition to the District Court together. A suit by the couple must be filed together. Petition to the District Court together.
Conditions The intended parties must be living separately for one year or more. Not specified. The intended parties must be living separately for two years or more. The intended parties must be living separately for one year or more. The intended parties must be living separately for one year or more.
Cooling Period 1 year + 6 months (not mandatory) 90 days. 1 year + 6 months (not mandatory) 1 year + 6 months (not mandatory) 1 year + 6 months (not mandatory)

Table specifying various personal laws related to mutual consent by divorce

Conditions necessary for successful granting of divorce by mutual consent

There are various steps involved in the process of granting a divorce by mutual consent. We will take into account every aspect of the divorce by mutual consent.

Withdrawal of consent after the filing of the divorce petition

A married couple can withdraw his consent even after filing of the petition. For that purpose, either of the parties can withdraw its consent before the commencement of second motion but it is also taken account into account that if any maintenance is provided after first motion then, it has to be refunded and restored to the concerning parties. If the concerning party withdraws its consent then, money received as maintenance must be returned to the other party.

  • Waiving off cooling period by the parties

There are two essentials conditions to be fulfilled for divorce by mutual consent in India. They are:-

  • The parties have to be living separately for one year.
  • Consent between the parties is essential for filing and granting of divorce by mutual consent.

These conditions need to be satisfied and under this comes another aspect i.e. Cooling Period or Waiting Period. It is defined as the period required to be entertained by the parties in a hope that there can be a chance of reconciliation and no divorce is granted to them. The first time it was seen in the case of P. Sunderraj v. P Sarika Raj where parties went for waiving of the cooling period but the court ordered that it cannot be dismissed and they must go through this period.

Then in the case of Pooja Deswal v. Sagar Deswal, it was held that the power of waiving of the cooling period does not lie in the hands of the court and the period of 6 months provided under section13-B of the Hindu Marriage Act, 1955 cannot be waived off.

Landmark judgment related to waiving of the cooling period: Amardeep Singh v. Harveen Kaur

The year of 2017 was seen as remarkable in the history of providing divorce by mutual consent. It was seen as a big step towards change in the dimension of divorce by mutual consent. The court in this year in the case of Amardeep Singh v. Harveen Kaur held that the cooling period of 6 months is not mandatory and it can be waived off.

The contesting party no longer need to observe cooling period as mentioned in section 13-B (2) of the Hindu Marriage Act, 1955. But it is upon the discretion of the court to wave off the cooling period as various guidelines need to be followed before waiving off the cooling period.

Signature of both the parties required in the divorce petition.

It is mandatory for both the parties to sign the documents and if anyone refuses out of two then, an attorney has to sign on behalf of them and the court can grant a divorce on behalf of that document only. If one of the spouses is not available to sign during second motion then, it is assumed that he agreed to the divorce and divorce will be granted. So, it is advised to be present during all divorce petitions.

Role of mediators in divorce by mutual consent.

The mechanism for mediation and alternative dispute resolution is provided in section 89 of Civil Procedure of Code which states that consent of both the parties is required in approaching mediation. The provision for mediation and conciliation is provided in section 23(2) and 23(3) of the Hindu Marriage Act, 1955 and in section 34(3) and 34(4) of the Special Marriage Act, 1954.

Also, the parties must go for mediation which was first laid down in Civil Procedure-Mediation Rules in the year 2003. Also, in the case K. Srinivas Rao v. D.A. Deepa it was laid down those parties need to go through mediation to see if there is any scope of settlements between the parties. The role of mediators is that it should always make out the best possible ways to settle a dispute between the parties and to the best interests of the party.

Shared parental responsibility.

The role of the parent is very crucial in the life of a child and it is often seen that a child is ignored often during the divorce process and he is the one who is most affected by divorce. Both the parents have to play an active role in providing better education, a healthy environment, providing better health care, etc to the child. They both have to work in the best interest of their child. It was laid down in the case of Sarita Sharma v. Sushil Sharma. The recent parenting laws are approved by Bombay and Madhya Pradesh High Courts and other states have their separate laws.

Conclusion

Considering the vital importance and necessity of marital life in society various things are kept in mind while granting a decree of divorce to the parties. Divorce by mutual consent provides an opportunity of amicable resolution of disputes between parties and saves time and money.

Various changes have occurred to the procedure of granting divorce by mutual consent and various contrasting judgments have also been passed by that. Seeking divorce by mutual consent will eventually minimize the hassles and difficulties faced by couples in comparison to a contested divorce and further simplify the process for both parties.

-This article is brought to you in collaboration with Sherry Shukla from Maharashtra National Law University, Nagpur.

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